Solicitor who had acted for both parties showed no conflict of interest

28-June-2013 Family Law By Simone Green

 

 

The Family Court can legally restrain a solicitor from acting for a client on the basis of a conflict. In a recent property proceedings case, (House & Altimas [2012] FamCA 625, 3 August 2012), the applicant husband applied for an order restraining the respondent wife’s solicitor from representing her. The application was based on the fact that 14 years ago, the wife’s solicitor represented the husband in a claim arising from a road accident.

In practical terms, for there to be a conflict, the applicant has to prove that the applicant possessed confidential information which could be used in the current proceedings and would be prejudicial to the applicant.

The legal test to determine whether a solicitor should be restrained was stated in Asia Pacific Telecommunications Limited v Optus Networks Pty Limited [2005] NSWSC 550 as follows:

“whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice”.

In House & Altimas, Justice Ryan was not satisfied that the applicant had previously communicated confidential material to the respondent’s solicitor. 

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Written by Simone Green

Simone Green

Simone Green has been practicing family law for 17 years. After attaining her Bachelor of Arts/Law, Simone chose to further her studies, successfully gaining her Masters of Applied Family Law. In acknowledgement of her expertise in Family Law, Simone was awarded her Specialist Accreditation in Family Law in 2013. Simone is also a Collaboratively trained Family Lawyer and is a member of AACP and CPNSW. Simone is the Director of the Family Law Practice at Streeterlaw.

Call us on 02 8197 0105 to book an appointment with Simone Green!

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